Under the fresh judgement, officers working in all departments except those relating to public order, land and police fell within the administrative and legislative control of the Delhi government, thus capping off a dispute that began with a notification issued eight years ago by the Union government, which led to a protracted court battle with split verdicts.
But how did things get so bad?
It begins with Delhi’s unique status: the government of the National Capital Territory of Delhi (NCTD) has legislative and executive power over services, that is, those listed under Entry 41 of List II of the Seventh Schedule of the Constitution. However, entries 1, 2 and 18 of the state lists — police, land, and public order — are not under the Delhi government, as article 239AA of the Constitution specifically excludes these subjects and places them under the legislative control of the Union government.
The hostilities started soon after Arvind Kejriwal took oath as the chief minister of New Delhi in 2015, with the Bharatiya Janata Party(BJP)-led government at the Centre.
In April 2015, CM Arvind Kejriwal began routing files directly to his office, and asked officials to not bother the office of the LG. Stung by the move, the then LG Najeeb Jung directed officials of all departments to refer all files to him first .
Jung’s appointment of Shakuntala Gamlin as the acting chief secretary the following month led to another tussle — the first of many in which bureaucrats were caught in the crossfire. Kejriwal opposed Gamlin’s appointment, accusing her of being a lobbyist for power companies. The gloves soon came off, and one of the first high-ranking officials to catch the heat was the then Principal Secretary (Services) Anindo Majumdar.
On the morning of May 18, 2015, Majumdar reached his office only to find it locked “on the orders of CM Kejriwal.” He had signed Gamlin’s appointment orders on the directions of LG Jung. Despite opposition from AAP, Gamlin took charge and served till KK Sharma returned after a 10-day personal trip to the United States. The LG and Kejriwal knocked on the President’s door too. The Ministry of Home Affairs eventually issued a notification on May 21, clarifying that the LG had absolute power to transfer and post bureaucrats in Delhi, and added that Delhi’s Anti-Corruption Branch (ACB) could not take cognizance of offences against Central government officers and employees. The notification laid down that the Delhi government will have no powers over services as is the case under Entry 41 of State List under the Constitution, which gives state assemblies the prerogative on state public services.
A week later, the AAP government moved the Supreme Court seeking to stay the MHA notification, after the HC declined its plea.
As the CM Vs LG battle played out in court, the working environment became hostile. In December 2015, bureaucrats went on a mass leave to protest what they felt was nothing short of harassment of officers who were caught in the crossfire. Besides governance, the morale of bureaucrats had also taken a hit.
On February 20, 2018, the then Chief Secretary Anshu Prakash alleged that he was assaulted by AAP Members of Legislative Assembly (MLAs) during a meeting at Kejriwal’s residence. Prakash, who lodged a complaint with the LG Anil Baijal (Jung retired in 2016), also received the support of an association of IAS officers. The Delhi government, in turn, denied the allegations and asked the LG to act against Prakash for “misconduct” during a meeting with the CM. The Delhi police eventually arrested two MLAs, Amanatullah Khan and Prakash Jarwal were arrested (they were later granted bail) for allegedly assaulting Prakash.
In June that year, the CM sat on a dharna with three cabinet ministers — Manish Sisodia, Satyendra Jain, and Gopal Rai — at the LG’s office for nine days as bureaucrats were not attending meetings called by ministers. The bureaucrats eventually began to attend the meetings, which brought the demonstration to an end.
In what seemed to hold out a promise of respite, on July 4, 2018, a five-judge bench of the Supreme Court led by then chief justice Dipak Misra, observed that land, police, and public order were under the Central government with the rest of the subjects coming under the elected government.
However, the problems did not end.
While the bench interpreted the scope of power of the Delhi Assembly under Article 239AA, it also placed the issue of the legislative competence of the Delhi Assembly over ‘services’ before a two-judge bench. This bench delivered a split verdict in 2019, and the matter was referred to a three-judge bench. The onus of the decision ultimately came before a Constitution bench.
In 2021, the Union government sought to put an end to the debate by passing the Government of National Capital Territory of Delhi (Amendment) act in Parliament, which made the LG’s nod mandatory prior to executing any policy approved by the Delhi government’s council of ministers.
According to the amendment, the “Lieutenant Governor” is referred to as the “government” in Delhi.
The constitution bench’s verdict on May 11 however, overturns this. The SC held that references to “state government” in relevant rules of All India Services or Joint Cadre Services, of which the Delhi government is a part, or which are in relation to it, shall mean the elected government in the Union Territory.
On May 23 of last year, VK Saxena was appointed the Delhi LG. In the past eight months, Saxena has ordered at least nine probes against the AAP government ranging from irregularities in power subsidy, to misuse of office by the former Dialogue and Development Commission of Delhi Vice Chief Jasmine Shah, hiring of guest teachers, procurement of 1,000 low floor buses, and the construction of seven temporary Covid-19 hospitals.
The now scrapped liquor policy also landed ministers in jail.
The Delhi government’s 2021-22 excise policy aimed to revitalise the city’s flagging liquor business, by replacing a sales-volume based regime with a licence-fee one for traders and promised swankier stores free of the infamous metal grills to give customers a better buying experience. The policy also introduced discounts and offers on the purchase of liquor, a first for Delhi. The plan, however, ended abruptly, with the LG recommending a Central Bureau of Investigation (CBI) probe into alleged irregularities in the regime. In August 2022, the CBI’s First Information Report listed Delhi deputy CM Manish Sisodia as an accused in the case. While investigation is still on, five persons have been arrested so far. Sisodia and the Aam Aadmi Party have dismissed the probe as a politically motivated witch-hunt.
Most recently, the LG ordered the recovery of ₹164 crore on advertisements spent by the Delhi government. The AAP has accused LG of targeting the government to stop them from working. On Thursday, the state government even said that bureaucrats have become hostile towards the elected government and were issuing such orders on LG’s orders.
Anshu Prakash did not comment on the Supreme Court’s verdict on May 11, nor was there any comment forthcoming from the LG’s office.
Another bureaucrat, who did not wish to be named, said: “The problem of governance in Delhi lies with the feature of asymmetrical federalism without a clear unity of command leading to a confrontation between LG and CM. This problem of confrontation is not only confined to Delhi with an elected assembly, but also in Puducherry with an elected assembly which witnessed sharp differences in the open between the CM V Narayanaswamy and the then LG Kiran Bedi.”
Sanjeev Chopra, the former director of Lal Bahadur Shastri National Academy of Administration, which trains IAS officers, put down the tussle to “a structural defect in the way the GNCTD has been organised” in his book ‘We, the People of the States of Bharat: The Making and Remaking of India’s Internal Boundaries. “Overlapping powers between the Centre and the elected government is the cause behind all the problems and the frequent tussles,” the book reads.
“The goals of the two (CM and LG) are very different. A citizen does not look at the government in multiple parts, but as a single entity,” reads another relevant quote from the book. On Thursday, the Supreme Court put a pin on the matter. How it holds up remains to be seen.